Is the High Court Mistaken about the Aim of Statutory Interpretation?

Publication Date01 June 2016
AuthorDale Smith
DOI10.1177/0067205X1604400203
Date01 June 2016
SubjectArticle
IS THE HIGH COURT MISTAKEN ABOUT THE AIM OF
STATUTORY INTERPRETATION?
Dale Smith*
ABSTRACT
A central tenet of the High Court of Australia’s account of statutory interpretation is that
the aim when interpreting a statutory provision is to ascertain the meaning of the words
contained in that provision. The goal of this article is to challenge that tenet, which I call
“the meaning thesis”. I argue that the High Court’s acceptance of the meaning thesis
leaves it unable to account for important features of the practice of statutory
interpretation. In particular, it struggles to account for the ways in which statutory
provisions interact with other legal norms (including other statutory provisions),
especially when those other norms are introduced into the law after the statutory
provisions with which they interact. This, I argue, provides a powerful reason to
abandon the meaning thesis. I conclude by br iefly suggesting how we might begin to
develop a more satisfactory account of statutory interpretation.
I INTRODUCTION
In recent years, the Hig h Court has expressed scepticism about legislative intent. It has
denied that the aim of statutory interpretation is to discover the intentions Parliament
conveyed through its use of the words contained in the statute, at least if we understand
those intentions as some sort of ‘objective collective mental state’.
1
Legislative intent in
this sense, says the Court, is fictitious or metaphoric al; the phrase ‘legislative intent’
should be understood as merely a label attached to a meaning that is identified (or
perhaps constructed) by applying widely accepted principles of statutory interpretation.
* Melbourne Law School, University of Melbourne. I am grateful to participants at a seminar
at Melbourne Law School at which an earlier version of this article was presented. I am also
grateful to Hrafn Asgeirsson, Patrick Emerton, Jeff Goldsworthy, Larr y Solum and David
Tan for very helpful comments on an earlier draft, a nd to an anonymous referee for their
helpful suggestions. This research was supported under the Australian Research Council’s
Discovery Projects funding scheme (project number DP140102670).
1
Lacey v Attorney-General (Qld) (2011) 242 CLR 573 (‘Lacey’), 592 (French CJ, Gummow, Hayne,
Crennan, Kiefel and Bell JJ). Some would deny that the Court’s scepticism about legislative
intent is all that recent, pointing (for example) to the wording of t he famous passage from
Project Blue Sky: ‘the duty of a court is to give the words of a statutory provision the meaning
that the legislature is taken to have intended them to have.’ (Project Blue Sky Inc v Australian
Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), 384 (McHugh, Gummow, Kirby
and Hayne JJ) (emphasis added).)
228 Federal Law Review Volume 44
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The High Court’s scepticism about legislative intent has attracted a great deal of
attention, from both supporters and critics.
2
However, the High Court has a more
fundamental commitment with regard to statutory interpretation, one that has received
far less scrutiny. This c ommitment arises out of the Court’s claim t hat the ultimate aim
when interpreting a statutory provision is to ascertain the meaning of the words
contained in the provision. One way of viewing the controversy about legislative intent
is that it is about what determines the meaning of those words. Is their meaning
constituted by Parliament’s intentions (to convey certain information via the use of those
words), or is it instead fixed by the application of widely accepted principles of statutory
interpretation? Viewed in this way, the debate about legislative intent takes place within
a framework that has already been structured by a commitment to ascertaining the
meaning of the words contained in the statute.
3
My goal in this article is to challenge the High Court’s claim that the ultimate aim of
statutory interpretation is to ascertain the meaning of the words contained in the
provision being interpreted. I shall call this claim ‘the meaning thesis’, and I shall argue
that it cannot account for important features of the practice of statutory interpretation.
In particular, it can account for only some of the ways in which statutory provisions
interact with other legal norms (including ot her stat utory provisions). I shall contend
that this provides a powerful reason to reject the meaning thesis.
4
Of course, ascertaining the meaning of the words contained in the pr ovision being
interpreted is an important step in the interpretive process. However, I shall argue, the
High Court is wrong to claim that it represents the ultimate aim of statutory
interpretation. This gives rise to an obvious objection, even before I give my reasons fo r
rejecting the meaning thesis ─ namely, that it is not possible for the High Court to be
mistaken about such a fundamental aspect of Australian law. In Section II, I seek to show
that this objection is misguided and, in doing so, to clarify the argumentative strategy I
shall employ in the article.
In Section III, I show that the High Court does indeed endorse the meaning thesis,
and I suggest some reasons why that thesis may appear attractive. Then, in Section IV, I
present an initial objection to the Court’s position. I argue that, given its scepticism about
legislative intent, the High Court cannot account for some uncontroversial features of
statutory interpretation ─ such as the presumption of mens rea that is employed when
interpreting criminal offence provisions consistently with the meaning thesis.
Moreover, even if the Court were to abandon its scepticism about legislative i ntent, its
2
See, eg, Richard Ekins a nd Jeffrey Goldsworthy, ‘The Reality and Indispensability of
Legislative Intentions’ (2014) 36(1) Sydney Law Review 39 (who are highly critical of the High
Court’s scepticism) a nd Joseph Campbell and Richard Campbell, ‘Wh y Statutory
Interpretation is Done as it is Done’ (2014) 39 Australian Bar Review 1 (who are broadly
sympathetic to the High Court’s position).
3
I do not mean to imply that someone who is not sceptical about legislative intent must regard
it as contributing to the meaning of the words in the statute. This is, perhaps, the standard
approach (see, eg, Ekins and Goldsworthy, above n 2), but one might believe that legislative
intent is relevant independent of any contribution it makes to the meaning of the words in
the statute.
4
I believe that many academic commentators also accept the meaning thesis, though I shall
not seek to substantiate that claim in this article. If I am right, the difficulties for the meaning
thesis that I identify pose problems, not only for the High Court, but for much academic
writing about statutory interpretation as well.

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